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TH£ NEW-JERSEY ELECTION CASE. 






MepoTt of" the tMlniority of the 
Committee of Election^y^ 

House of Representatives, July 16 , 1840 . 

The undersigned, constituting a minority of the Committee of 
Elections, to which was referred the New-Jersey case, not concur¬ 
ring in the result to which the majority of the committee has come, 
end beheving that it sufficiently appears, from the evidence, that 
Messrs, Charles C. Stratton, John P. B. Maxwell, and William 
Halsted, were duly elected members of the twenty-sixth Congress^ 
to the exclusion of Messrs. Joseph Kille, Daniel B. Ryall and 
Philemon Dickerson, by a majority of the lawful votes of the Peo¬ 
ple of that State, beg leave to submit the subjoined exposition of 
their views, to enable this honorable body to form a just estimate 
of the proceedings of the committee, and of the merits of the case. 
The undersigned feel great difficulty and embarrassment in pre¬ 
senting to the House, within a reasonable compass, such a devel- 
opement of the case, and of the action of the committee on the 
questions arising, as the importance of the subject would seem to 
require. On opening the evidence, W'e perceived that the topics of 
controversy were exceedingly numferouis and complicated, and, in 
course of the investigation, it was necessary, sometimes, to recur 
to provisions of the laws of the United States, sometimes to those 
of New-Jersey, and at other times to the principles of the common 
law', and of general jurisprudence. With no less than four hundred 
and ninety cases of controverted votes, and with this great diversi¬ 
ty of legal principle and statutory provision, applicable to the case, 
it was to be expected tliat there would be an occasional difference 
of opinion in the committee as to the fact, the Iaw% or both. If 
nothing but such a difference had marked the deliberations of the 
committee, the undersigned would have remained silent; but the 
proceedings throughout have been of so singular a character and 
distinguished by such an utter disregard of the plainest and best 
settled principles of law and evidence, and have been so capricious, 
inconsistent, partial, irregular, and unjust, that they feel impelled, 
by a lugh sense of obligation to the cause of justice and truth, to 
undertake, by a brief induction of facts, to show that the conclu¬ 
sions and judgments of the majority of the committee are wholly 
unwoithy of the sanction of this House,^and of the confidence of 
the country. If the testimony adduced be examined in connexion 
with the journal kept by the committee, where are recorded the 
opinions and votes of the members on all the various questions 
arising in the case, it will appear that the majority, in numerous 





-V 






( 3 ) 

Instances, overruled objections taken by Messrs. Aycrigg and iii% 
associates to the legality of votes, on the ground that the evidence 
was inadequate, when, in fact, such evidence was adequate and 
sufficient to convince any reasonable mind; that the majority in¬ 
sisted upon a much higher measure of proof to support an objec¬ 
tion on one side than was required to sustain a similar objection on 
the other, and Messrs. Aycrigg and his associates often failed with 
satisfactory evidence, when Messrs. Vroom and others prevailed 
with that which was comparatively light and trivial f that the ma¬ 
jority applied principles of evidence of statutory construction or 
general law in such a manner as to defeat the efforts of one side to 
establish the illegality of votes, and then refused, on some frivolous 
ground of distinction, to apply the same principles to cases arising 
on the other side, when the merits vvere obviously alike, and that 
I they adopted, and as against one of the parties pertinaciously ad¬ 
hered to, certain general rules which were eminently adapted to 
defeat all inquiry into the merits, and to make the whole investiga¬ 
tion little better than a mockery and a farce, thus rendering ihs 
important provision of the Constitution, that each House shall be 
the judge not merely of the returns and qualifications, but also of 
the election of its members, vain and nugatory. 

The undersigned, before they advert to the cases by which they 
can, as they believe, evince the justice of these remarks, would in¬ 
vite the attention of the House to the laws of New-Jersey on the 
qualifications necessary to the exercise of the elective franchise. 
The people of that State have not a Constitution in the ordinary 
acceptation of the term, but they live under a system of govern¬ 
ment ordained by a Colonial Legislature, which has the force and 
effect of a-Constitution, and is intended in some of its provisions 
to be inviolate, as the members of the General Assembly are obli¬ 
ged at the outset of every session to swear that they will not vote 
to change such provisions, of which that relating to the elective 
franchise is not one. 

By the Constitution or Ordinance a considerable property quali- 
lication was originally made indispensable, but this has been sub¬ 
sequently modified by legislative enactment. 

The undersigned have felt considerable doubt and difficulty io 
arriving at the true intent and meaning of the laws of Nevv^Jersey 
on this subject on account of their uncertainty, yet, taking into 
consideration the very general construction given in that Slate to 
the doubtful clauses, and favoring, so far as may be, the policy of 
extending this invaluable right—a policy which has manifestly re¬ 
ceived the sanction of the good people of New-Jersey—-they are 
satisfied that it was intended by the law'-makers of that Slate that 
the franchise should be exercised by all white male citizens of the 
TJniled States who have attained twenty-one years of age, who re¬ 
side in the township where they offer to vote, and have resided in 
the county one year next preceding, and paid a tax, or been as¬ 
sessed in conformity to the laws of the State. It is required that 
the person voting should be a free white male citizen of the United 
^-^les, and this made it necessary for the committee in a very nu- 
xwsfous class of cases to examine the naturalization laws of the 




0 


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tJnitefl States to determine what evidence of alienage or natural!*- 
nation is admissible, competent, and sufficient, and whether the pro*- 
ceedings taken in certain cases with a view to naturalization were 
valid, and conferred the right of citizenship. It is required also 
that the voter should be one and twenty years of age, and this in¬ 
volved questions of fact whether certain persons whose Votes were 
challenged as illegal were or were not of that age at the October 
election in 1838. It is required that he should reside in the town¬ 
ship at the election, and in the county during the year preceding, 
and this rendered it our duty to advert to the law of domicil, and tO 
determine what did and what did not amount to a change of resi¬ 
dence under almost every variety of circumstances ; and finally, it 
is required that the voter either should have paid a tax or been 
assessed ; and this often involved the committee in doubt and per¬ 
plexity touching the terms of a very incoherent law in ascertaining 
when the tax must have been paid, and how the party should have 
been assessed, and whether pauperism in New-Jersey operates to 
exclude a person from the elective franchise, and, if so, when and 
under what circumstances. Besides these, a great variety of inci¬ 
dental questions arose, some of which were referable to the ordi¬ 
nary principles of law and evidence, and others to the peculiar in¬ 
stitutions of New-Jersey, but the undersigned have not time toad- 
vert to them in any other than this general form. 

We submit this statement touching the extent, variety, and com¬ 
plication of the questions comprised in this controversy, that the 
House may appreciate the obligation which the committee were 
under to ascertain the true principles applicable to each head of 
inquiry, and to apply such principles, when ascertained, with scru¬ 
pulous fidelity to all cases as they arose, iirespective of parlies, 
and with a view to administer even-handed and exact justice to all 
eoiicerned. It is with much regret that the undersigned find them¬ 
selves constrained to say, (which they do without impeaching the 
motives of their associates constituting the majority of the commit¬ 
tee,) that such an administration of even-handed justice is not to be 
found in the record; on the contrary, they perceive in it nothing 
but a confused medley of adjudication, little better than a chaos of 
principles, with all the jarring elements of inconsistency united to 
defeat the requisitions of legal rights and obvious truths. To go 
into all the particulars by which the propriety of these suggestions 
can be sustained is wholly impossible ; but the undersigned will 
endeavor to illustrate their views by a series of sample cases, and 
will thus show that any thing else may be found in these anomalous 
and strange proceedings than a sound, impartial, and faithful ad¬ 
ministration of justice. 

To enable the House to appreciate the action of the committee 
on the cases to which we are about to refer, we would remark that 
it was conceded by all the members that the reception of a vote by 
the election officers raised a presumption in favor of the legality of 
such vote. Early in our deliberations, we adopted a resolution 
declarative of this principle, the justice and propriety of which 
must be apparent to all. But, very soon after we commenced scru¬ 
tinizing the votes, we perceived that there was a radical difference 


( 4 ) 

of opinion in the committee touching the use which should be 
made of this presumption. 

The undersigned are persuaded that the only effect which can be 
given to the reception of a vote at the polls is to throw the burden 
of proof on the party objecting to its legality; but the majority 
seemed disposed to cany the principle much further, and to con¬ 
vert the presumption into “ a swift witness” in favor of the oppo¬ 
site party. If a credible witness was adduced who proved the fact 
of illegality by his positive oath, the majority would confront such 
witness with the presumption, and would give it all the efficacy 
appertaining to testimony under oath, and, thus balancing the oath 
of the living witness against the presumption, they would come to 
the conclusion that nothing was proved. Nay, more; the majority, 
strange as it may seem, held that the presumption was so strong 
that it imposed on the party excepting to a vote the burden of pro¬ 
ving a negative. When Messrs. Aycrigg and others objected to a 
vote on the ground of alienage, they were required to prove not 
merely that the voter was an alien born, but that lie had not been 
naturalized--a task which, in many cases, is wholly impracticable. 

The undersigned cannot omit noticing one curious circumstance, 
and that is, that this presumption seldom visited the committee- 
room except when one of these parties was endeavoring to estab¬ 
lish the illegality of votes. If it appeared at all when the other 
party was making the same effort, the undersigned must say they 
were scarcely conscious of its presence. Why this principle should 
“ wax and wane” in this singular manner we acknowledge our¬ 
selves unable to determine, and we must refer the solution of the 
phenomenon to more philosophical minds. But the undersigned 
will recur to these topics hereafter. They now proceed to the il¬ 
lustrations; and first, they invite the attention of the House to the 
cases of John McConaghy and Charles T. Pool, the first objected to 
by Messrs. Aycrigg and others, and the last by their cornpetitors, 
and both on the ground of alienage. 

John McConaghy, being sworn, saith : That he voted on the last day of the 
election in the township of Amwell, at the Congressional election held at the 
house of Nathan Risley, in the village of Lambertsville, in said township, in 
the year 1838; thinks it was in the month of October; does not recollect the 
day of the month. I voted the democratic ticket; it was called the Van Buren 
ticket; I received a Whig ticket of Edward Hunt; I did not like it; I received 
another of Mr. Samuel Carhart; said ticket was the Van Buren democratic 
ticket; said ticket was for members of Congress ; I put said ticket in the bal¬ 
lot-box. I was born in the north of Ireland, in the kingdom of Great Britain ; 
I arrived in this country on the 16th day of July, A. D. 1801; I was about six¬ 
teen years old. I never had any naturalization papers in the State of JN. Jersey ; 
i have voted 11 years in N. Jersey; I was never called upon for any naturalization 
papers ; I never had any at any lime when I voted in New-Jersey ; I had not any 
at the time that I refer to m this deposition, (meaning the year 1838,) when I 
■\ oted for members of Congress. I am fifty-four years old; I can read ; the 
ticket which I voted at the time referred to in this deposition had on it the 
names of the Van Buren candidates for Congress. his 

JOHN X McCONAGHY. 
mark. 

In the face of such testimony as this, the committee refused to 
deduct the vote of Mr. McConaghy from the poll of Messrs.Vroom 
and others. He did not pretend that he had been naturalized ; on 


( 5 ) 


the contrary, swore substantially that he had not been: no other 
construction can be given to his evidence. We ask the House to 
contrast this case with that of Charles T. Pool, which is as follows : 

Charles T. Pool, sworn, saith : I voted at the Congressional election in the 
township of Mansfield, Warren county, New-Jersey, in the year 1838. I am 
not a native born citizen of the United States of America. I was not natural¬ 
ized myself at that time, except that I considered myself naturalized by com¬ 
ing here when an infnnt, and my father being naturalized, I believe. I believe 
my father was naturalized, because I recollect, when I was young, of hearing 
him talk about his being naturalized ; whether he had been, or was to be, I do 
not recollect. In the next place, I know of his voting a number of years, and 
never heard any objection to it. I never saw him vote, to my knowledge. He 
died when I was about eighteen years of age. I never saw his naturalization 
papers; I am not positive whether he said he had been naturalized or was to 
be. I voted a Whig Congressional ticket in the fall of 1838, in this township. 

And being cross-examined, saith : I know of my father’s voting by hearing 
him speak of it. I have heard him say he voted the democratic ticket. I 
know of his going to the polls for the purpose of voting; this was when the 
parties ran high something like the years 1806, ’7, and ’8. I think there was 
an embargo at the time ; 1 recollect hearing my father read about it in the pa¬ 
pers; I do not recollect my father’s serving on juries ; he never was a free¬ 
holder in the county, I believe; he died in the year 1813, to the best of my 
recollection ; his name was Cyrus John Pool. 

And being called again, in chief, saith : I was five years of age when I came 
to this country. CHARLES T. POOL. 

In this case the committee decided the vote of Pool to be an 
unlawful vote, and deducted it from the poll of Messrs. Aycrigg 
and others. It thus appears that McConaghy was declared a citi¬ 
zen against his own oath that he was and remained an alien. And 
Pool was determined to be an alien upon the mere fact that he was 
born such, with very good grounds for believing that he had acqui¬ 
red the rights of citizenship through the naturalization of his father. 

^ The undersigned are at a loss to conceive of any language that 
will adequately express their sense of the flagrant injustice and in¬ 
consistency of these decisions. 

The next cases to which the undersigned would invite the atten¬ 
tion of the House are those of Candor Carr, whose vote was ob¬ 
jected to by Messrs. Aycrigg and his associates on the ground of 
alienage, and of James B. Bolton, objected to by Messrs. Yroom 
and others for the same reason ; in respect to which the committee, 
with facts substantially the same, came to directly opposite results. 

Candor Carr voted the Administration ticket in the township of 
Hardiston, in the county of Sussex, at the Congressional election 
in 1838. His vote was objected to by Messrs. Aycrigg and others 
on the ground of alienage. He was summoned as a witness, and 
appeared before the magistrate, but, on the oath being tendered to 
him, he refused to be sworn or to testify his knowledge of the facts 
in the case. Samuel McPeck testified that he knew Candor Carr; 
had heard him say that he came from Ireland ; that he was not 
naturalized in New-York when he first came to that city; did not 
say how long after, but it was soon after. It was in 1838, some 
time before the election, that witness heard him say that he had 
been naturalized. It appears from the evidence that, in that town¬ 
ship, the election officers held that aliens or unnaturalized foreign¬ 
ers were, according to the laws of New-Jersey, entitled to vote a 


( 6 ) 

tiecision which it is admitted on all hands was palpably erroneous^. 
One would suppose that it would be difficult to raiJ^e a presumption 
in favor of a vote from tlie mere rece|)lion of it by election officers 
under such circumstances; but the majority, notwithstanding the 
determination of the board to admit the votes of aliens, and not¬ 
withstanding the voter stood obstinately mute when his ri^ht was 
in question, and when he could have vindicated that right by a 
breath, if it had been susceptible of vindication, held that the mere 
admission of the vote at the polls proved that the voter was no al¬ 
ien; or, in other words, they gravely concluded from such prem¬ 
ises that he had been naturalized ; they overruled the objection of 
Messrs. Aycrigg and others, and held the vote to be a lawful one. 

We submit to the House whether, under the circumstances, we 
use too strong language in pronouncing this result a judicial per¬ 
version. But the enormity of the decision cannot be understood 
till we contrast it w^ith a case to which we now ask the alientiors 
of the House. 

James B. Bolton voted the opposition ticket in the township of 
Frankford, in the same county and at the same election. His vote 
was objected to by Messrs. Vroora and others for the Same reason ; 
he was duly summoned by them and refused to appear as a witness. 
Nathaniel Roe proves that he knows Bolton ; that he is a foreign¬ 
er; from his acquaintance with him he supposes him to be a for¬ 
eigner ; he has told the witness once and since the election tha^ 
he had been naturalized ; has known him five or six years ; his vote 
was not objected to, and nothing was said at that election about for¬ 
eigners voting, Sam’l Price proves a conversation between himself 
•and Bolton in substance as follows: I told him that if he had beerr 
naturalized I considered him a legal voter in the township; he said 
he had been naturalized in Albany, in the state of New-York. I 
then told him he had better come down and state the fact, and it 
would make him a legal voter under the old law ; that the new lav/ 
would require him to produce his papers ; that he had better testi¬ 
fy to the fact and then send to Albany to get liis papers, and that 
would make him a legal voter next fall ; he said it would not cost 
more to be naturalized again than to get the certificate from Alba¬ 
ny; this the witness contradicted, and other conversation followed 
which need not be repeated. The witness adds: I then told him 
that I suspected for a long lime that he had never been naturalized, 
from loose expressions that 1 had heard him make at different times 
on that subject. Mrs. Buchanan, who was present, then said : I 
suppose you are now satisfied that he has never been naturalized ; 
I replied that 1 was. This was said in his presence, to which he 
made no remarks in reply. It appeared from the evidence that 
Bolton had voted five or six times before without any objection be¬ 
ing made ; also the conversation detailed by Price took place when 
the subpoena was served on Bolton, he. Price, acting as an officer 
for that purpose. The declaration, therefore, was made by Bolton 
pending the controversy, and was on that account, in the opinion 
of the committee, wholly inadmissible. 

It would be of dangerous consequence to receive and give effect 
to conversations had under such circumstances in a case of contest- 




{ T ) 


«(3 elections. The House can hardly fail to be impressed with the 
wonderful coincidence between these cases. In both the voters 
were foreigners—in both they affirmed that they had been natural¬ 
ized—in both they refused to be sworn or disclose the facts—and 
in both Uiey stood mute when their right was called in question. 
7'here are strong circumstances in favor of the vote of Bolton 
which do not exist in the case of Carr: one is, that the authorities 
of Frankford, unlike those of Hardiston, did not intentionally ad¬ 
mit alien voles contrary to law; so that the vote of Bolton was 
sustained by wliatever of presumption there may be resulting from 
its presentation and admission at the polls. And another is, that 
Carr affirmed that lie was naturalized at a time when he could not 
have been by the laws of the land, that is to say, when he first 
came into JNew-York from Ireland ; whereas no such objection ex¬ 
ists in the case of Bolton ; and yet the majority held, after sustain¬ 
ing the vole of Carr, that the vole of Bolton was an unlawful vote. 
By what process of reasoning they arrived at such a conclusion the 
iindersigned are at a loss to understand—they are reluctant to be- 
iieve that it was because Carr voted the Administration, and Bolton 
the Opposition ticket. 

Idle undersigned will nov/ advert to two very remarkable cases, 
and which will serve better perhaps than any other to characterize 
the proceedings of the committee. They are as follows: 

Philip Schetter voted the Whig ticket at the township of Mill¬ 
ville, in the county of Cumberland, at the same election. Messrs. 
Yr-oom and others objected to his vote on the same ground ; his 
own testimony was produced to sustain the objection. He testified 
that he was a native of Germany, that he was naturalized at the 
time he voted in 1838, and would have sworn to it at that lime. He 
thinks he slated that he had been naturalized when he otfered to 
vote, but is not certain. Some of the judges had been told of it 
before. Was naturalized in Tennessee, in 1832. Did not produce 
any evidence of his naturalization—none was called for. He had 
not then, nor has he now, any evidence of the fact, but has sent Ids 
papers to Germany in order to save the necessity of procuring a 
substitute in the army. It appears that he had formerly voted at 
other places besides Millville. There was more testimony adduced, 
but we have stated all that we deem material. The committee sus¬ 
tained the objection, and deducted the vole from the poll of Messrs. 
Aycrigg and others. 

Archibald McCambridge voted the Administration ticket at the 
same township and the same election, and Messrs. Aycrigg and 
others objected to bis vote on the same grounds. The voter him¬ 
self was examined as a witness, and after swearing that he is a na¬ 
tive of Ireland, testifies as follows: “1 have been naturalized; I 
was naturalized at Mount Holly ; I had been in Millville twice or 
three times before I was naturalized; don’t recollect the year I was 
naturalized; J think it was in 1821 or 1822, if I remember right; 
it was in the fall or winter before 1 broke my thigh.” Mount Hol¬ 
ly is the county seat of the county of Burlington, and when the 
ivitness says he was naturalized in Mount Holly, he doubtless 
tneiins to be understood to swear that he was naturalized before 


( 8 ) 


some one of the courts held there. Messrs. Aycrigg and others 
produced the certificate of the clerk of that county, who has the 
custody of all its judicial records, stating that he had searched the 
same, and that he could find no record or paper appertainirig to the 
naturalization of the witness. In the face of this fact, the commit¬ 
tee overruled the objection, and held the vote to be a lawful vote. 
To enable the House to appreciate these cases, we would observe, 
that the committee have often held that they would not require re¬ 
cord evidence of naturalization, but would act on secondary proof 
of that fact—such as the oath of the voter, or other credible evi¬ 
dence. The House will hardly fail to notice how much stronger 
the case of Schetter is in favor of the voter, than that of McCam- 
bridge. In both they were foreigners, and in both they positively 
swore that they had been naturalized. And in favor of both the 
presumption existed, which arises from the reception of their votes 
at the polls; but the testimony of the latter was flatly contradicted 
by the certificate of the clerk of Burlington county, and yet the 
committee held the vote cast by Schetter for the Whig candidates 
to be an unlawful vote, and the vote cast by McCambridge for their 
opponents to be a lawful vote. 

Many other cases, equally significant, might be cited under the 
head of alienage, but we have neither time nor space to advert to 
them. The undersigned will next invite the attention of the House 
to the contrast exhibited by the record in the disposition of the 
cases objected to on the ground of non-age, or infancy. 

Augustus Moore voted in the township of Warren, county of 
r;omerset, at the same congressional election ; he voted the Admin¬ 
istration ticket. Messrs. Aycrigg and others objected to his vote 
on the ground of infancy, and proved by the testimony of John 
Muckel that he had a conversation with Moore in the fall of 1838, 
before the election, and he told him he was not old enough to 
vote. W. Corey took part in the conversation, and he asked him 
whether he (Moore) was old enough to vote ? Mr. Moore said he 
was not old enough to vote that year. No testimony was produced 
in opposition to this, so that the case stood upon a declaration of 
the voter against his right, made at a time when he had no motive 
to violate the truth, and yet the majority held the proof inadequate 
on the ground of hearsay. Contrary Jo what the undersigned be¬ 
lieve to be the true principle, they overruled the objection and de¬ 
cided that the vote was a lawful one. 

William Kerris vd^ed at the township of Pequannock, in the 
county of Morris, at the same election ; he voted the Whig ticket; 
his vote was objected to by Messrs. Vroom and others, on the same 
ground. They proved by Benjamin Crane that he had been ac¬ 
quainted with Kerris from a child ; witness understood him that 
he would be twenty-one years old in the summer of 1839. Witness 
did business for him, and he could not sell his lands because he 
was not of age; that he is about of age now, (deposition taken 
March 20, 1840.) Wm. Kerris told him so at the lime. This was 
the whole proof; the mere declaration of the voter made out of 
court more than six months after the election, in substance that he 
was not of age at the October election of 1838; yet the majority 



( 9 ) 


of the committee sustained the objection of Messrs. Vroom and 
others in the teeth of their decision in Moore’s case, and held the 
vote of Kerris to be an unlawful vote. 

The case of Samuel A. Price, who voted the Administration 
ticket at Frankford, in the county of Sussex, at the same election, 
and whose vote was objected to by Messrs. Aycrigg and others, on 
the ground of non-age, will be found to conflict also with that of 
Augustus Moore, [vide printed evidence,'pages 198, 199, 200, 1, 
2, 4, and 5.] It is in fact a much stronger case, for Price refused 
to appear when summoned and state his age; but the committee 
refused to deduct his vote from the poll of Messrs. Vroom and oth¬ 
ers. It thus appears that the statement of a voter as to his age is 
good and sufficient for one of the parties, but not so in favor of 
the other. We shall leave the majority to assign the reason, if 
any exists, for such a distinction. 

The undersigned would observe that very numerous cases w'ere 
submitted to the committee of objections to votes on the ground 
of NON-RESIDENCE. The laws of New-Jersey require that the 
voter should have resided in the county one year previous to, and 
in the township where he votes at the time of election. No fixed 
period of residence in the township is necessary—it is sufficient if 
the voter be actually domiciled there at the election, but the resi¬ 
dence in the county must have been one year next preceding the 
election, and the question of non-residence submitted to the com¬ 
mittee appertained principally to the latter species of residence. 
The principles applicable to the subject are well settled ; the most 
important of which we cite from Judge Story’s able and learned 
treatise on the Conflict of Laws, from page 44 to 47. They are as 
follows: “ The place of birth of a person is considered as his 
domicil, if it is at the time of his birth the domicil of his parents.” 

Prima facie where a person lives is taken to be his domicil, un¬ 
til other facts establish the contrary.” “ The place where a mar¬ 
ried man’s family reside is generally to be deemed his domicil, and 
if a married man has his family fixed in one place and he does his 
business in another, the former is considered the place of his do¬ 
micil.” “If a married man has two places of residence at differ¬ 
ent times of the year, that will be esteemed his domicil which he 
himself selects or describes to be his home, or which appears to 
be the centre of his affairs, or where he votes or exercises the 
rights and duties of a citizen.” “ The mere intention to acquire a 
new domicil, without the fact of removal, avails nothing; neither 
does the fact of removal without the intention ; both must concur.” 
“ A domicil once acquired remains until a new one is acquired,” 
which is so “when a person actually removes to another place 
with an intention of remaining there for any indefinite period of 
time.” 

These are the principles, but the undersigned insist that the ma¬ 
jority liave not applied them properly to the cases submitted, and 
their decisions are irreconcilable and contradictory, and this they 
propose to illustrate as follows : 

Thomas A. Drake voted in the township of Warren, in the coun¬ 
ty of Somerset, at the Congressional election in 1838 ; he voted 
2 


the Administration ticket; Messrs. Aycrigg and others objected to 
his vote on the ground that he had not resided in the county one 
entire year next preceding the election. Jeremiah Drake, the fa¬ 
ther of Thomas A. swore that his son went to Railway on the 5th 
day of October, 1838; he went there to work and live; his wife 
was there at the time; he married at Rahway, in the county of 
Essex ; he made his home there at that lime, and has continued to 
live there ever since. The witness afterwards adds, “ When Tho¬ 
mas went away from my house on the 5tli of October, 1838, he 
went then [to Rahway] to live, and has remained there ever since, 
and has never had a home in Warren township since, that I know 
of.” Nothing was shown in opposition to this evidence, which we 
deem proof positive of a change of residence from Somerset to Es¬ 
sex countv, anterior to the election in 1838, which took place on 
the 9th and lOth days of October of that year. The objection of 
Messrs. Aycrigg and others was overruled. 

Marshall Conant voted in the same township at the same elec¬ 
tion. His vole was objected to for non-residence. John D. Put¬ 
nam was the only witness called, who proves that Marshall Conant 
lived at Noah Drake’s that season ; that he moved from Drake’s 
between the first and middle of September, 1838; took away a 
large chest and small trunk, and said he tvas gofng to reside at 
Green Village, in the county of Morris, to teach a school and tend 
store there, [employments that would seem to be rather incompat¬ 
ible.] The witness does not know when he went, except by what 
he said ; did not see him go to Morris county, and did not know of 
his returning to reside at Drake’s till after the election. It appears 
by the evidence that Conant was in the neighborhood at the time 
the testimony was taken, and no attempt made to obtain his know¬ 
ledge of the facts. On this evidence, infinitely more feeble and 
lame than that adduced in the case of T. A. Drake, the committee 
rejected the vote of Conant. We ask the House to contrast the 
two cases. 

In the first place, Drake went to his tvife and family. Conant 
did not. Drake became a permanent resident of the place to which 
he went. Conant did not; he appears to have returned immedi¬ 
ately after the election, thus evincing that he did not intend to 
change his residence. And in Drake’s case, his father swears pos¬ 
itively that his son did change his residence, and did go to Rahwav 
to reside on the 5th of October; but no such testimony is given in 
Conant’s case ; and yet the committee come to directly opposite 
results in the two cases—that the first tvas a lawful and the last an 
unlawful vote. It is scarcely necessary, after this statement, to in¬ 
form the House that Marshall Conant voted the Whig ticket—a 
fact to which we are obliged to recur much loo often in giving an 
exposition of the proceedings of the committee. 

Robert Greenleaf voted at South Amboy, in the county of Mid¬ 
dlesex. at the same election ; he voted the Administration ticket. 
Messrs. Aycrigg and others objected to his vote on the ground of 
non-residence. John B. Applegate proves that Greenleaf offered 
to vote at the election in 1838, and he challenged his vote, on the 
ground that he had not lived long enough in the county. He told 


( 11 ) 

llie judges that he had moved his family into the county of Middle¬ 
sex only a few days before the first day of April, 1838, which he 
admitted to be true. John Seward proves that his family Jived in 
Paterson, as he heard him say ; did not know that he moved there 
directly from Paterson; they might have been in New-York ; 
knows that his family came to South Amboy in the steamboat, and 
helped him remove his goods from the boat; he moved intoCono- 
logue’s house, who lived the next door to the witness. Thomas 
Applegate proves that Greenleaf moved his family into the county 
of Middlesex in the spring of 1838, from the county of Bergen, as 
he thought. He worked at South Amboy the fall before, but at 
what time the witness does not recollect. Previous to the spring 
of 1838 U. Greenleaf left South Amboy every two or three months, 
as witness expected, to go to see his family ; has heard him say 
previous to the spring of 1838 that his family lived in the county 
of Bergen. This, in the judgment of the undersigned, is, on in¬ 
disputable principles, a perfectly clear case of non-residence at 
South Amboy, and yet the committee overruled the objection, and 
held the vote to be a lawful vote. 

John Teats voted in the township of Hardwick, in the countv of 
Warren, at the same election. He voted the Opposition ticket. 
Messrs. Vroom and others objected to tiie vote on the ground that 
he did not reside in the township at the election, though it was ad¬ 
mitted that he had resided in the county the year preceding. John 
L. Armstrong proves that his wife and family resided at Columbia, 
in the township of Knolton, in that county, in the fall of 1838, at 
the time of the Congressional election of that year. Witness could 
not tell how long he had worked for him previous to the election ; 
thinks it was more than one week, but not over two ; he remained 
with the witness after the election till cold weather; he hired him, 
and calculated to keep him longer, but did not ; did not hire him 
for any length of time, but expected to keep him a year. The com¬ 
mittee held properly that the residence of Teats was with his fami¬ 
ly at Columbia, and that he could not vote at Hardwick. They 
therefore deducted his vote from the poll of Messrs. Aycrigg and 
his associates ; but the decision of the committee in Greenleaf’s 
case conflicts directly with that of Teats. In both cases the elec¬ 
tors were married men, and in both they had families residing in 
one place while they were laboring in another; and yet in one 
case the committee held that the elector could vote in the place 
where he was at work, and in the other case that he could not. 

William Helm voted at Newton, in the county of Sussex, at the 
same election; he voted the Administration ticket. This vote was 
objected to by Messrs. Aycrigg and others, on the ground of non¬ 
residence. John S. Brodrick proves that he knew Helm ; never 
knew him till August or September before the election; did not 
know how long he had lived in the county; he said he came from 
the east side of the North river, in the state of New-York, when 
he came here ; did not know' when he came from that state; a la¬ 
boring man, whose principal business was to make stone fence, 
and was living in the neighborhood of Lafayette at the time of the 
election. Witness does not know where he is now. John B. Gus^ 


7 


( 12 ) 

tin proves that he first saw Helm in the spring of 1838 at Lafay¬ 
ette; hired him to work for him in September following; he then 
told witness he came from Columbia county, in the stale of New- 
York ; he told me so when he came to Lafayette in the spring; he 
had two bundles with him, and a bag, and appeared as if he had 
been travelling when witness first saw him. He adds that Helm 
did not tell him how long he had been in the county; he was lay¬ 
ing stone fence about the neighborhood ; and the witness under¬ 
stood that he had gone back to the state of New-York. Upon this 
state of the facts, the committee overruled the objections'of Messrs. 
Aycrigg and others, and held the vote to have been a lawful vote. 

Charles P. Marks voted the opposition ticket at Elizabethtown, 
in the county of Essex, at the same election ; his vote was objected 
to by Messrs. Vroom and his associates, for the same reason. To 
sustain the objection, the testimony of a Mr. Hatfield is introduced, 
who swears that he knows Marks; he follows the business of a 
travelling merchant or pedlar ; he is from Connecticut; a single 
man ; prior to the spring of 1838 he left the employ of Kellogg &- 
Halse 5 % at Elizabethtown, and purchased a wagon of the deponent; 
went to Paterson, got a load there, and peddled for some one in 
Paterson, and he never returned here to make it his residence. In 
opposition to this, M. W. Halsey proves that Marks was in the 
employ of Kellogg &. Halsey, of which firm the witness was a mem¬ 
ber ; his business, from 1835 to 1838, was peddling goods for Kel¬ 
logg & Halsey, with a one-horse wagon, through the country ; his 
washing, making and mending clothes, was done at Elizabethtown 
from 1835 to February, 1838; after that time he ceased to be in the 
employ of the firm. But the witness swears positively that Marks 
had his washing, mending and making clothes, done at Elizabeth¬ 
town, and made his home at the house of the deponent up to 1839, 
and to the spring of 1839, as he thinks. Notwithstanding this evi¬ 
dence, the majority of the committee held that Marks was not a 
resident of Elizabethtown at the election of 1838, and deducted his 
vote from the poll of Messrs. Aycrigg and others. 

We confidently submit that the evidence in favor of the legality 
of the vote of Marks is much stronger than that adduced to sustain 
the vote of Helm; indeed, there are some very significant circum¬ 
stances against the vote of the latter ; his employment, that of ma¬ 
king stone-wall, renders it improbable that he should have been in 
Sussex in the winter of ’37"8, when his home was in the state of 
New-York, and his appearance when first seen by Mr. Gustin, be¬ 
ing that of a person who had been travelling, is a sufficient intima¬ 
tion of the truth. He had just then arrived from the county of Co¬ 
lumbia, in the state of New-York ; but no such facts existed in the 
case of Marks, and yet the committee held the one, sustained by 
feeble, and at best doubtful, proof, to be a lawful vote, and the oth¬ 
er, in opposition to positive evidence, to be an unlawful vote. 

Charles Swallow offered to vote the Whig ticket in the township 
of Delaware, in the county of Hunterdon, at the same election ; 
his vote was rejected by the election officers on the ground of non¬ 
residence. Messrs. Aycrigg and others now claim that his vote 
was a lawful vote in Delaware, and should be added to their poll. 


( 15 ) 


It appears from the evidence of Swallow that he was a native of 
that township, .was a single man, his father lived there ; he had 
been employed on canals and railroads in various pans of the coun¬ 
try for a number of years ; but he says “ I always considered my 
father’s house my home. I always considered the jobs I was do¬ 
ing as temporary jobs. I had a horse part of the time at my fa¬ 
ther’s when I was absent. I have never been away except when 
engaged on public works. I always called my father’s house my 
home, for when I was out of employment I always went there.” 
The witness goes into detail as to his various engagements from 
1833 to the fall of 1837, showing that as soon as he got through 
one engagement he would return to his father’s, staying weeks and 
months ar a time, till he was re-engaged. lie finally returned in 
the fall of 1837, about two weeks after the election. He has re¬ 
mained at Delaware, residing at his father’s, ever since. It should 
be borne in mind that Delaware was the native residence or domi¬ 
cil of the voter, and it is a settled rule that a domicil once gained, 
either by birth or otherwise, is never lost till another is acquired. 
It is difficult to conceive how Swallow could have acquired a do¬ 
micil all along the canals and railroads which he constructed, but 
the committee held the vote to be an unlawful vote. We ask the 
House to contrast this case with the following. 

William Baker voted the Administration ticket in the township 
and county of Burlington, at the same election. Messrs. Aycrigg 
and others objected to his vote on the ground of non-residence, it 
appearing from the testimony of William R. Allen that he was a 
travelling journeyman shoemaker, going with his kit from place to 
place, getting work as he could. The first we know of him, he 
resided at Baltimore ; from thence he went to Philadelphia, and 
appeared at Burlington in May, 1836; remained till the winter fol¬ 
lowing; went to New-York, and in a few weeks returned to Bur¬ 
lington ; remained till August, 1837, and then went to Philadel¬ 
phia and remained till February, 1838, then returned again to 
Burlington and remained until after the election, and left, finally, 
the winter after. The witness says : “ 1 saw him during the time 
he was in Philadelphia. I visited the house where he boarded in 
Philadelphia at least twice. I saw him at work in Philadelphia in 
the shop. I know positively that he was residing in Philadelphia 
at that time. He W’as once in Burlington, on a visit, during that 
time; this was about Christmas, 1837. From my own knowledge 
I do not know that he left any thing in Burlington when he left in 
August, 1837.” It appears that when Baker offered to vote he 
said that when he went to Philadelphia he intended to return to 
Burlington, but this was a mere pretence to get in his vote. His 
employment and manner of life prove, conclusively, that his resi¬ 
dence could only be where he happened to be at work. But the 
majority of the committee thought otherwise, and decided his vote 
was a lawful vote—or, in other words, Charles Swallow lost his 
birthright, his residence in the place of his nativity, by going abroad 
to superintend public works; but William Baker could lose no¬ 
thing, though traversing all parts of the country, and leading a 
very unsettled life. Perhaps the majority of the committee can 
explain why they made such a distinction between the two cases. 



( 14 ) 

But not only have the majority been inconsistent in their deductions of fact, 
but thay have been equally so in the application of the rules of evidence to the 
cases before them ; or, in other words, evidence which they held to be good and 
sufficient when offered by one of the parties for a specified purpose, they lield 
to be incompetent and inadmissible when offered by the other, for the same 
purpose. This the undersigned will illustrate as follows : 

Ira Baldwin voted the Administration ticket at Caldwell, in the county of 
Essex, at the same election ; Messrs. Aycrigg and others objected to his vote 
on the ground of non-residence. Peter Kerstead, a witness on behalf of Messrs. 
Aycrigg and others, proves that Baldwin told him that “he had not been in 
the place long enough by a month to make him a legal voter ; that he had been 
absent a month, and that he got in his vote by making them believe it was a 
Whig ticket, otherwise he would not have succeeded.” William G. Crane, a 
witness adduced also by the same party, proves that Baldwin told him that “he 
was not entitled to vote ; he lacked a month, or near that, to make him a legal 
voter so that Messrs. Aycrigg and others proved by two witnesses an express 
declaration by the voter that he had not resided the requisite period in the 
county ; but the committee overruled the objection, on the ground that the evi¬ 
dence was mere hearsay, and they held that some other proof should be given 
of the non-residence of Baldwin than his declaration ; and, therefore, they re¬ 
fused to deduct his vote from the poll of Messrs. Vroom and others. But this 
rule only lasted till the committee reached the case of 

Jerome B. Pratt, who voted the whig ticket at the township of West Milford, 
in the county of Passaic, at the same election. His vote was objected to by 
Messrs. Vroom and others on the ground of non-residence. The deposition of 
Samuel S. Gregory was produced, which proved that Pratt told him he had not 
resided in the county of Passaic one entire year previous to the election ; had 
resided in New-Jersey more than one whole year altogether, but had resided out 
of the state within the last year preceding the election ; he inquired of the wit¬ 
ness as to the law on elections ; witness then informed him that a voter was 
required to reside within the county one whole year previous to the election to 
entitle him to vote ; Pratt then said, if that was the case he supposed he was 
not a legal voter, as he had resided out of the state within the last year, and 
had he known the law he would not have voted. Such, in substance, was the 
evidence ; it was nothing but the declaration of the voter as to his right. The 
committee held the evidence to be competent, and deducted the controverted 
vote from the poll of Messrs. Aycrigg and others. A similar decision was made 
by the committee in the case of John McManniman (vide printed report of ev¬ 
idence, folio 126,) by which Messrs. Vroom and others proved the illegality of 
a vote ; so that it would seem that the admission of voters is good in favor of 
one of the parties to establish non-residence, but not good for the same purpose 
in favor of the other. Many other cases of an incongruous application of the 
rules of evidence might be referred to, but the purpose of the undersigned will 
be sufficiently answered by citing the above as examples. 

We desire next to invite the attention of the House to cases in which the 
parties respectively objected to votes on the ground of pauperism, or for the 
reason that the voters whose right was questioned had neither paid a tax nor 
been assessed in conformity to the laws of the state. And here, if we mistake 
not, we shall find the same irregularity and inconsistency which pervades oth¬ 
er branches of this investigation. 

According to the Constitution or colonial ordinance before referred to, the 
possession of X50 clear estate was necessary to the exercise of the elective 
franchise, but this has been modified by subsequent enactments, as follows : 
(Revised Laws, 741.) 

“ Sec. 5. Every person who shall in other respects be entitled to a vote, and 
who shall have paid a tax for the use of the county or the state, and whose 
name shall be enrolled on any duplicate list of the last state or county tax, shall 
be adjudged by the officers conducting the election to be worth X50 money 
aforesaid clear estate. 

“ Sec. 6. That no person shall hereafter be deemed by the officers conduct¬ 
ing the election to be a qualified voter who has not either paid a tax, or whose 
name is not enrolled on the duplicate as aforesaid, except in case of persons 
removing from one township wherein they have paid a tax to another town- 
ship in the same county, or of persons who have been inadvertently overlook- 


( 15 ) 

ed by the assessor, in either of which cases such persons claiming a vote, and 
being in other respects qualified, shall be admitted; and in the case of persons 
who have been inadvertently overlooked by the assessor as aforesaid, their 
names shall be immediately entered on the tax list.” 

The undersigned have felt much embarrassment in giving a construction to 
these sections, and they cannot but feel much surprise that the good people of 
New-Jersey should have suffered the invaluable right af suffrage to be involved 
in all the perplexity and doubt of obscure and contradictory phraseology. But 
on full consideration they are disposed to give the sections a construction con. 
forming to what they understand to be the practice of the state, and to hold 
that if a person has either paid a tax, or has had his name enrolled on any du¬ 
plicate list of the last state or county tax, he is entitled to the elective fran. 
chise, as he is, also, in the excepted cases specified in the last section. 

It is usual in New-Jersey for a person whose name has not been enrolled, and 
who desires to exercise the elective franchise, to appear at the polls and to de¬ 
mand the enrolment of his name, which is always done under the idea that it 
has been “ inadvertently overlooked” by the assessor ; and thus, by the payment 
of a trifling tax, the elective franchise is put within the reach of every citizen 
of New-Jersey. But it would obviously be improper to enrol a pauper. It can¬ 
not be supposed that the name of such person was “inadvertently overlooked;” 
and it would be absurd to call on a man to pay taxes who cannot do so, and if 
he could, to whom the money would be forthwith returned for his support. 
Hence we deem it settled that paupers cannot vote in New-Jersey. This brief 
exposition of the laws of that state will enable us to contrast some of the cases 
under this head, and the House can judge whether the committee were any 
more successful in administering “equal and exact justice” to the parties in 
this, than they were in the other branches of this inquiry. 

Isaac Jobes voted the Administration ticket in the township of Chesterfield, 
in the county of Burlington, at the election of 1838; his vote was objected to 
on the ground of pauperism. William Tiel was examined as a witness, who 
proves that Jobes had not paid a tax for some years back, a.s he believes ; re¬ 
puted and considered in the township to be a pauper; thinks he had been in 
the county house before the election of 1838 ; on reflection is confident that he 
had been ; that he sent him there himself as overseer of the poor; took him 
there on the 5lh day of May, 1835, and saw him there afterwards ; has every 
reason to believe that Jobes was a pauper at the election of 1838; he could 
not say that he had seen him at the county house two years before the election ; 
his name was not on the regular part of the duplicate, and there being no cross 
mark against his name, it would seem that his tax had not been paid. Isaac 
Jobes himself was examined, and swears that he did not pay his tax in 1838 ; 
does not know who paid it. John Ilitchins gave him the receipt and he expects 
he paid it; took the receipt home and does not know what became of it; has 
been in the county house; was there in 1838, but had his regular discharge 
the last Tuesday in April; went in there the forepart of the previous winter, 
also last winter ; went in after new-year’s and left the forepart of March last, 
(1840 ;) has been in the county house four times, but is able to support himself 
in the summer months. This is a very clear case of pauperism, one in which 
the party takes the tenant of the poor house to the polls and pays his tax in 
consideration of getting his vote. Jobes was obviously not qualified, but the 
majority of the committee overruled the objection and held his vote to have 
been a lawful vote. 

James Hoffman voted the Whig ticket in the township of Frankford, in the 
county of Sussex, at the election of 1838. Messrs. Vroom and others objected 
to his vote on the ground of pauperism. Matthew J. Williams proved that he 
said he never paid a tax. He is a very poor man. His family were at the poor, 
house in June, 18.38 ; he was not at the poor-house himself. His family staid 
about a week. Testimony is given by Guy Price and Samuel Price to the same 
effect, and there is no doubt as to the poverty of Hoffman ; that his family had 
received some relief from the public, and, tliough he himself had not, the com- 
mittee held the vote to be unlawful, and deducted it from the poll of Messrs. 
Aycrigg and others. W^e do not wish to be understood to complain of this de¬ 
cision, though it is manifestly a questionable case of pauperism ; but if this be 
right, that of Isaac Jobes was grossly erroneous~a man who is undoubtedly 
poor, and the tenant of a poor-house during the winter both before and 







( 16 ) 

after the election, gives an Administration vote, and the majority of the commit¬ 
tee say it is a good vote; and another person, who never saw the inside of such 
a building, and who merely had his family there for the brief period of one week, 
gives an Opposition vote, and the same majority pronounce it an unlawful vote, 
or, in other words, a weak case becomes a strong one if the vote be cast one 
way, and a strong case becomes the reverse if it be cast the other. 

Nathan F. Randolph voted the Administration ticket in the township of 
Woodbridge, in the county of Middlesex, at the election of 1838. Messrs. Ayc- 
rigg and others objected to his vote on the ground of pauperism ; they prove by 
Elijah Hewit that he was acquainted with Randolph ; that he came to the poor- 
house, under the legal order of the overseer of the poor of the township of 
Woodbridge, four years ago last fall; that he came in October, 1835, and re¬ 
mained three months ; he has no property whatever, and is supported by his 
friends ; has seen his partisans pay his tax twice at the elections, once since the 
election in October, 1838, and once before. No other testimony was adduced ; 
the committee overruled the objection, and held the vote to be a lawful one. 

Enos Dickerson voted an Opposition ticket in the township of Jefferson, in 
the county of Morris, at the same election. Messrs.Vroom and others objected 
to his vote on the same ground ; they examined Dickerson himself, who proves 
that he had not paid any tax in Morris county for the years 1837 and 1838, and 
does not know that he paid any tax for four or five years, except 1839 ; but that 
he was duly assessed for 1838. Joseph Dickerson swears that E. D. is a poor 
man. He has been assessed in the township of Jefferson for the last ten years 
or more, but the township committee have relieved the constable from the pay- 
ment of his taxes for a number of years past. This was the whole proof, and 
the committee sustained the objection, and deducted the vote from the poll of 
Messrs. Aycrigg and others. 

We beg the Souse to contrast these cases^ and observe how widely different 
has been the treatment which the parties to this controversy have received at the 
hands of the committee. In both cases the voters were poor men, doubtless 
quite poor. In Randolph’s case it did not appear that he was assessed in 1838, 
and, if he was, w^e have good reason to believe that the tax was paid, as at other 
times, by his political friends to get his vote. In Dickerson’s case, he was regu¬ 
larly assessed, though the tax was afterwards remitted by the township authori¬ 
ties. In the former case, the voter had actually been the tenant of a poor-house. 
In the latter he had not. And Randolph was supported wholly by his friends, 
and Dickerson, for aught that appears, supported himself. We confidently sub¬ 
mit that the indications of pauperism were much stronger in Randolph’s case 
than in that of Dickerson, and yet the vote of the first was held to be a lawful, 
and that of tlie last to be an unlawful vote. We maintain that the disposition 
which the committee made of the cases was clearly unjust and erroneous. Ma¬ 
ny other cases of a similar character coming under the head of pauperism mi<^ht 
be referred to, but it is believed to be unnecessary. “ 

The undersigned would observe, that early in the investigation a question 
arose as to the character of the proof which should be received and deemed suf¬ 
ficient to enable them to appropriate such of the votes as they might determine to 
have been unlawful. In New-Jersey the right of ballot obtains as in most of the 
states of the Union. If an unlawful vote be cast, how are we to ascertain who 
had the benefit of such vote ? It is obvious that, in many cases, it will be imprac¬ 
ticable to obtain positive proof. In some cases the voter may be willing to ap¬ 
pear and disclose the fact under oath ; in other cases it may be in the power of 
the party to produce a witness who can swear to the character of the vote o'iven • 
but in many more, no evidence of that description can be obtained to ascertain 
the fact in controversy. It seems to the undersigned to be indispensable to re¬ 
ceive secondary evidence to this point—such as the declaration of the voter either 
at the election or soon after, and also proof of his political character which 
when well defined, will be a sufficient guide to the truth. But we ought to be 
very careful not to receive and act upon evidence of an equivocal character which 
may have been created or manufactured for the occasion. In adoptino' these views 
there was a good degree of unanimity in the committee, but the majority have 
been by no means consistent in carrying them out, as the following cases prove. 

Peter Snyder voted the Administration ticket at Millville, in^ the county of 
Cumberland, at the same election, and Messrs. Aycrigg and others proved by 
his own testimony that he was an alien and a foreigner, unnaturalized. The 
only question was as to the ticket he voted. He swears that he voted four or 
five times before the election in 1838 j that he then voted the democratic ticket j 


( 17 ) 

cannot tell whom he voted for; cannot read English ; does not know who cfave 
him the ticket; cannot tell why he wanted to vote the democratic ticket. At the 
time he voted he lived at Schettersvillo, and supposes the other men at Schet- 
tersville voted the same ticket he did. It appears from the evidence that a large 
number of aliens went from Schetter’s factory to the polls at Millville and voted. 
John frank testifies as follows : I took some pains in getting tlie men employed 
by Mr. Schetter to the polls at the election. 1 gave tickets to a number of them 
and gave them the Van Buren ticket. Afterwards he adds, “ I suppose that all 
the unnaturalized foreigners (except Philip Schetter) from Schetter’s factory vo¬ 
ted the Van Buren ticket. I think I had a right to know, from their expressin«» 
what kind of ticket tiiey voted.” This was the proof. It seems to be explicit 
The positive oath of Snyder that he voted the Administration ticket was con¬ 
firmed by the little less positive testimony of Frank ; and yet the committee 
could not see in such testimony any sufficient evidence of the character of the 
vote ol Snyder. They refused to deduct it from the poll of Vroom and others, 
and lett it a floating vote. 

Wm. J. Ayres voted in the tow^^hip of Upper Alloways Creek, in the county 
of Salem. He was indisputably an illegal voter, by reason of non-residence— 
and the only question submitted to the committee was, as in the last case, as to 
the character of his vote. John D. Ayres was examined as a witness. He says, 
“ I don't know what he voted, but my supposition is he voted the Whig ticket.” 
And afterward he adds, “ I do not know of my owm knowledge what ticket he 
voted. I don t know any thing about it at all. I said before, and again repeat, 
my supposition is that William voted the Whig ticket. He goes with theWhigs. 
I am what is called a Van Buren man—full blooded.” Ellis Ayres deposes as 
follows : “ I asked him (Wm. J. Ayres) yesterday what ticket he voted. He said 
he voted the Jackson ticket. I gave him twm tickets, one of each kind, as we 
were going to the election. I believe he voted one of the tickets I gave him. He 
put one in one pocket, and tlie other in his other pocket. I understood him to 
mean by the Jackson ticket the one I termed the Jackson ticket when 1 gave it 
to him. It was the full-blooded Van Buren ticket I gave him.” 

It should be known that this testimony was taken at the instance of Messrs, 
Vroom and others, but those gentlemen did not venture to submit it to the com¬ 
mittee. It was brought forw'ard by Messrs. Aycrigg and others, and they claim¬ 
ed that the vote of Ayres should be deducted from the poll of their competitors. 
It will be observed, on the other hand, that there was no other evidence that he 
voted the Opposition ticket, except the mere supposition of J. D. Ayres that he 
voted the Whig ticket, without a single fact to support it. What the witness 
means by the voter “ going with the Whigs,” does not appear. There was no 
proof that his reputation was that of a Whig, and no declaration before the elec¬ 
tion that he intended to vote the Whig ticket, or, after, that he had voted the 
Whig ticket. The only affirmation which he in fact made on the subject, was 
to Ellis Ayres, that “ he voted the Jackson ticket.” After the decision of the 
committee in the case of Peter Snyder, every one must be prepared for the result 
—that this was a floating or doubtful vote, that could not be appropriated. Not 
so ; the committee could see in such proof that Wm. J. Ayres voted the Whig 
ticket, and, incredible as it may seem, they deducted his vote from the poll of 
Messrs. Aycrigg and others. So that, on the question of deduction of a vote 
from the poll on one side, they cannot discern in the positive oath of a voter, 
fortified by collateral proof, how he voted ; but, on a question of deduction of a 
vote from the other side, they can see this in a mere supposition or conjecture in 
opposition to the declaration of the voter himself, and not supported by a single 
fact. What more need be said to illustrate the inconsistencies which have mar¬ 
ked the course of the committee ? 

But we now desire to call the particular attention of the House to the all-con¬ 
trolling principle which pervaded the deliberations of the committee, and which 
was ingeniously adapted to favor the “ foregone conclusion” that the Opposition 
claimants are not entitled to the contested seats. The House will recollect the 
position of the controversy at the time we commenced the inquiry into the facts. 
The majority of the committee had previously reported to the House that the 
Administration claimants had received at the poll a majority of votes of from 
thirty to one hundred and ninety-eight. Hence it will be perceived that the par¬ 
ly having such majority were interested to make the proof of illegal votes as 
difficult as possible. Any general rule, the effect of w'hich, though administered 
with impartiality, should be to increase the embarrassment, would obviously ope¬ 
rate in their favor; and we ask, what rule could be better adapted to the end 








( 18 ) 

suggested than that of giving an inordinate effect to the reception of a disputed 
vote at the polls ? This idea was a prolific source of difficulty to the coniiniltee, 
and, what is of more consequence, of flagrant injustice to one of the parties. One 
of the many progeny of this suggestion was the legal absurdity that the parly 
objecting on the ground of alienage must, under all circmnstances, prove not on¬ 
ly that the voter was an alien born, but, in addition, that he had never been nat¬ 
uralized. The committee knew at the onset that Messrs. Aycrigg and ot^heis 
expected to prove many alien votes to establish their right to the seats, rids 
was set forth fully in the exposition oi facts which they submitted to the commit¬ 
tee at an early stage of the proceedings. The House cannot fail to observe how 
admirably the rulTof negative proof is fitted to embarrass one side of this contro¬ 
versy, and to fortify the posilion of the other side ; but, nevertheless, it is the du¬ 
ty ot the party thus embarrassed to submit to tlie evil, if the rule itself be founded 
in law. But we insist that it is not so founded. No precedent can be found of 
the application of such a rule to such a case. The party having the affirmative 
of the issue takes the burden of proof. A foreigner comes to the poll and 
votes ; you can prove that he is such, but how can yon prove tliat he has not 
been naturalized ? Perhaps he may be willing to testify, and then you may 
prove the fact by his own oath ; but suppose he is dead, or has removed away, 
or chooses to stand mute, he cannot he put to the question, he cannot be com¬ 
pelled to criminate himself The rule imposes on the parly objecting the neces¬ 
sity of searching all the records in the Union, and getting the testimony of eve¬ 
ry record-keeper to piove the fact. This is manifestly impossible. No man in 
his senses can believe that any such rule exists. 

It is a principle of the law of evidence “ that the affirmative of the issue must 
be proved, and he who makes an assertion is the person who is expected to sup¬ 
port it, before he calls on his opponent for an answer.” And again : “The bur¬ 
den of proof lies on the person who has to support his case by proving a fact of 
which he is believed to be ignorant.”—Vide Rogers’s Law and Practice of Elec¬ 
tions, p. 114-117.) To suppose any member of the committee to be ignorant of 
a rule of law so old and universal, and founded in so much good sense, would 
be to justify his integrit)’ and maintain his impartiality at liie expense of his 
judgment, and every qualification required for the proper discharge of the duties 
of a Committee of Elections. We disclaim all design of charging the course 
adopted by the majority to corrupt intentions, but we are very reluctant to em¬ 
brace the other branch of the alternative, and conclude, therefore, that some 
strange prejudice must have taken possession of the mind and led the judgment 
captive at will. 

But not only did the committee adopt a very extraordinary rule, but they ap¬ 
plied it to the case in a very extraordinary manner, and thus essentially aggrava¬ 
ted the evil which that rule was adapted to inflict. For they hold votes to be law¬ 
ful on account of the absence of proof of non-naturalization, in cases where, 

1st. The election officers decided that aliens had a right to vote according to 
law, and avowedly admitted them to vote on that ground. 

2d. Where aliens were summoned before the magistrates who took the evi¬ 
dence, and where they refused to attend ; or, if they attended, stood mute as 
to their right. 

3d- Where the two circumstances above indicated were combined, as they 
were in many of the cases submitted to the committee. 

4th. Where aliens produced at the polls, as evidence of naturalization, a de¬ 
claration of an intent to become naturalized at a future period, which we all 
know is a mere preliminary step to, but is not naturalization itself. 

In many cases the committee held votes to be lawful where all the above cir¬ 
cumstances were united against the voter; and we should be wanting in duty 
to the contesting paities, to the People of Nevv-Jersey, and to the whole coun¬ 
try, if we did not bring the conduct of the majority, in this particular, distinctly 
to the notice of the House. 

In the township of Newton, in the county of Sussex, alien votes were received 
not only at this, but at previous elections, for a great number of years, and two 
of the judges, in the presence of the thi rd, declared at this election that they con¬ 
sidered such votes legal. It is also proved that, at this eitetion, they received the 
votes of a large number of such persons, and among them that of one about whom 
there was a contest, and who acknowledged that he had been in the country but 
little more than a year. At this poll, among other foreigners, Moses Robinson, 
James Ennis, and Luke Flood voted for Messrs. Dickerson and his associaios. 
Robinson and Flood were subpoenaed, but did not attend. Ennis was out oi the 


( 19 ) 

state. All are proved to be foreigners ; and a witness sw’cars, in respect to En¬ 
nis and Flood, not only that they are foreigners, but also that they are reputed to 
he aliens, and he believes they are so. I'lie committee considered this evidence 
insufficient, and decided the votes to be legal. 

In the township of South Amboy, in the county of Middlesex, twenty foreigners 
came forward to vole, and presented what they supposed to be naturalization pa- 
])ers, but which, upon examination, turned out to be only declarations of intention 
to become naturalized ; some ot which bore dale but a few days previous. These 
papers are proved to have been all ot the same character—all mere declarations of 
intention. JNine of these men have become naturalized since the election, as was 
proved by the production of copies of their papers of naturalization, and their votes 
were thrown out by the committee as illegal. But the voles of the other eleven, 
who have not yet become citizens, were decided to be legal. The decision of the 
committee, in this case, requires not only evidence that the voter is a foreigner, 
tliat he produced as papers of naturalization mere declarations of intention, but 
also the impossible negative proof that he had no others, although there is not a 
shadow of pretext that he had them. And this, too, when the voter himself re¬ 
fuses to appear and give testimony. 

in the township of Millville, in the county of Cumberland, tlie board of election 
officers decided at this very election, in express terms, tliat foreigners not natural¬ 
ized were entitled to vote, and the votes of thirty-one such persons are believed to 
have been received ; seventeen of these went from a single glass manufactory.— 
Philip Schetter, who has been clerk of the manufactorv, swears that they were all 
unnaturalized foreigners; that he has heard all or most of them say they were not 
naturalized ; and, again, that he has frequently heard the whole or nearly all of 
them say that they were not naturalized. John Frank, a manager in the manu¬ 
factory, who assisted in getting these men to the polls, speaks of them in general 
terms, as unnaturalized foreigners; and adds, that none of the foreigners of that 
place were naturalized, so far as he knows ; that lie heard some of them testify at 
Trenton that they were not. The clerk of the election swears to his belief that 
they were unnaturalized foreigners, thoughlie does not know’ it of his own know¬ 
ledge. Ten of these men still remain in the county, were produced, sw'ore that 
they were not naturalized, and their votes were declared illegal by the committee. 
The votes of three men, who are out of the state, were rejected on proof of their 
having sworn to the same fact at Trenton, before a committee of the Legislature ; 
but the votes of the other four, three of whom are out of the state, and the fourth 
not to be found, were decided to be legal. It is not a little singular that the vote 
of the onl^ remaining foreigner, w ho w’ent from the same establishment, and who 
is himselt produced, swears unequivocally that he has been naturalized in Tennes¬ 
see, and fully accounts for the absence of his papers, was rejected by the commit¬ 
tee as illegal. Whether the fact that he alone, of the whole eighteen that went 
from that establishment, voted for the Whig candidates, will account for this 
anomaly, we leave for the House and the country to determine. The undersigned 
would deprecate the establishment of any rule, the effect ot which would be to 
embarrass in the least that portion of oui fellow-citizens of foreign birth who are 
entitled to exercise the elective franchise. It is no hardship to them to require the 
production of their papers, which can, in nine cases out of ten, be readily done ; 
or if that is attended with inconvenience, they can at least appear and make oath 
to the fact of naturalization. Any other rule than this opens the door for the per¬ 
petration of innumerable frauds, and at the same time throw's in the w’ay of in¬ 
vestigation so many obstacles, that the existence and extent of such frauds can 
never be detected. It gives to a corrupt board of election officers the power of 
conferring all the rights of citizenship on w'homsoever they please ; on aliens just 
landed, as ignorant of our language as they are of our institutions, and 6t only to 
become the prey of evil men. This we have every reason to believe was exten¬ 
sively done in N. Jersey at the election of 1838 ; and the majority have adopted and 
so applied rules of investigation and evidence as to establish and sanction the whole. 

We conceive that such a precedent is a most flagrant violation of the Constitu¬ 
tion and law’s of the United States. By the Constitution the power is conferred 
on Congress to establish a uniform rule of naturalization, and that body has exer¬ 
cised the pow'er by enacting laws for the purpose ; but if a board of election officers 
can admit aliens to vote, and then a committee of elections will say we w'ill pre¬ 
sume them to be naturalized until the contrary is proved—w’e will presume it, tho’ 
they themselves refuse to show’ tlieir papers, or to say whether they have been nat¬ 
uralized or not—we will presume if, tkough they exhibit as evidence of their citi¬ 
zenship only declarations of an intent to become naturalized, without pretending 



( 20 ) 

that the act had been consummated: if a committee is to do all this, and much 
more, and the Housq is to sanction it, then we submit we have no uniform rule of 
naturalization, but the high immunities of an American citizen can be exercised and 
enjoyed by any stranger at the good- will and pleasure of any board of heated par¬ 
tisans who are more intent on gaining the paltry advantages of an election triumph 
than to execute, in good faith, the duties imposed by the Constitution and laws of 
their country. But the foregoing is not the only provision of the Constitution 
which the committee have nullified. “Each House shall be the judge of the 
elections, returns, and qualifications of its own members.” The House has alrea¬ 
dy passed judgment as to the returns and qualifications of the New-Jersey mem¬ 
bers—whether correctly or not, is not for us to say. Nothing now remains but 
a question of election. How is this to be settled ? According to the opinion of 
the majority, by applying to the case a series of presumptions which must render 
all hope of reaching the merits vain and nugatory ; or, in other words, it is pro¬ 
posed that the House shall blindly ratify all that the election officers have done 
—to make their judgment against law, justice, and right, the judgment of the 
House, and conclusive on the parlies. The manifold evils which must result 
from such a course—on the one hand holding out strong temptation to perpetrate 
frauds in elections, on account of the impunity with w’hich it may be done, and, 
on the other, by deterring parties aggrieved from every effort to detect them by 
reason of the difficulties thrown round the subject—are too obvious to need com¬ 
ment. The undersigned think that great injustice was done by the committee 
in rejecting, on one side, for technical defects, evidence in other respects compe¬ 
tent, while, on the other, they received and acted upon evidence taken ex parte, 
without notice or an opportunity of cross-examination. 

Evidence taken by Messrs. Aycrigg and others in the county of Somerset,when 
the other party attended and cross-examined the witnesses, was rejected because 
there was not eight days’ notice, and the attornies differed in their construction of 
the terms of a verbal agreement by which a shorter notice was to be received. 

But the evidence taken on the part of Messrs. Vroom and others in the county 
of Mercer, at a place different from tHe one mentioned in the notice, in the ab¬ 
sence of the other party and without any opportunity of cross-examination, wms 
received as competent, contrary to the agreement of the parties as well as the 
ordinary and well-known rules of lav/. We might state other facts of a similar 
character, but time will not permit. We trust the subject will not escape the 
notice of the House in the final disposition of the case on its merits. 

The undersigned are of opinion that the committee have not attended sufficiently 
to the proofs adduced by Messrs. Aycrigg and others of numerous frauds and ir¬ 
regularities at sundry polls at the election of 1838, particularly at South Amboy 
in the county of Middlesex, at Millville in the county of Cumberland, at Newton 
in the county of Sussex, and Saddle River in the county of Bergen. 

It is, in the judgment of the undersigned, of great consequence to the purity 
of the elective franchise and the perpetuity of our free institutions, that such a 
subject should be thoroughly investigated, and yet the committee have suffered 
nearly their whole time to be engrossed by the canvass of individual votes—de¬ 
voting to this all-important subject only a few brief hours. 

The House can hardly fail to learn with surprise that they left several of the 
most important questions under this head w'bolly untouched. The undersigned 
cannot advert to the facts with particularity, but would observe that there is much 
in the evidence to indicate that there was a concocted scheme to carry the election 
in 1838 in favor of the Administration ticket by the introduction of unlawful votes. 
On no other hypothesis can we account for the fact, that it should have been dis¬ 
covered all at once in distant and remote parts of the stale (and uniformly in 
townships where the election officers were friendly to the Administration) that 
aliens or unnaturalized foreigners had a right to vote. In South Amboy nineteen 
such aliens were admitted, in Millville twenty-seven, in Newton fifteen, and ma¬ 
ny others in various parts of the state, who voted the Administration ticket, and 
the election officers supported the Administration. 

Not the shadow of an argument was adduced before the committee to justify 
such conduct, and we cannot believe that the election officers acted under a mis- 
apprehension of the law : their motives were too obvious to need comment. 
They seem to have been blessed with a remarkable prescience of what would be 
the action of a Committee of Elections on votes once got into the ballot-box, no 
matter how illegally, and to have governed themselves accordingly. We would 
state, in addition, that in the township of South Amboy a Whig inspector was du¬ 
ly elected by a majority of the people present at the time prescribed by law, but 


( 21 ) 

Was not perrnitted to act. The moderator of the town-meeting, after such choice, 
took upon himself to proclaim a new election, and kept the same open until a 
sufficient number of his political friends were assembled to secure the election of 
the Administration candidate. This, of itself, would seem to us to be sufficient to 
render the election, so far as this township is concerned, irregular and void. 

It appears, from proof which we deem quite satisfactory, that thirty-two votes 
were deposited in the ballot-box at Saddle River for the Opposition candidates. 
1 he voters themselves swear to it in positive terms, and yet, from some cause, 
when the votes came to be counted off, the number appears to be only twenty- 
four. We do not intend to cast an imputation upon the inspectors of the elec¬ 
tion ; they are, doubtless, respectable men ; but the House can hardly fail to be 
impressed with the fact that evidence is adduced as to the good character of the 
inspectors, but noneat alias to the clerk, and, as he had charge of the ballot-box, 
he can doubtless explain the rule of reduction, which seems to have operated so 
mysteriously in Saddle River township. 

It appears from the evidence that, in the township of Newton, in Sussex coun¬ 
ty, besides the admission of alien votes, the names of no less than one hundred 
and twenty-nine persons, some with merely a nominal tax, w’ere added to the 
duplicate at the time of the election, to enable such persons to exercise the elective 
franchise. What proportion this number bears to the whole vote of the township 
the undersigned do not certainly know, (as the county returns sent up among the 
other evidence have been mislaid and not printed,) but we understand it is some* 
where about one-sixth of the whole number. None can be added, according to 
the laws of the State, except such as were “inadvertently overlooked” by the 
assessor in making out the list. 

Now, it is incredible that such an officer, whose duty it is to exercise the 
greatest diligence in ascertaining the names of taxable inhabitants, should acci-^ 
dentally overlook one-sixth of the people of the township. This fact throws 
great discredit on the poll at Newton, and is, in our judgment, quite sufficient to 
make it the duty of the opposite party to give some explanation of so extraordi¬ 
nary a transaction. 

But the undersigned cannot enter any further into the details appertaining to 
this branch of the subject. They hope the House will give it a thorough scrutiny. 

It is proper that we should here notice a very singular occurrence which took 
place during the progress of this business. A few days before the close of the 
labors of this committee, three of the imdersigned,.vimrn out with this protracted 
investigation, and despairing of effecting any good, or of preventing any injus¬ 
tice by continuing to act with the committee, and admonished by the refusal of 
the majority on a former occasion to allow them even one day to make a counter¬ 
report, abandoned the committee room to prepare this statement, and to attend 
to some urgent calls upon their time. Most of the contrasted cases had been 
prepared as above given, with a view of exhibiting to the House the gross incon¬ 
sistency and palpable injustice which marked the proceedings of the committee, 
when the three members of the minority, above alluded to, were surprised to 
learn that the majority, after having examined all the votes, and ascertained that 
the Administration claimants, upon the principles adopted as before stated, not 
only would be enabled to retain their seats, but that the majority given in their 
favor at the polls w’ould to some extent be increased, had gone back and recon¬ 
sidered and reversed the decisions of the committee in a few of the flagrant cases 
of irregularity, inconsistency and injustice. 

To do this they suspended the rules (being those of the House itself) which 
the committee had, at the outset of the investigation, adopted to govern its pro¬ 
ceedings, and having thus gained access to the record, they undertook to blot 
out some of the dark stains with which it is disfigured. 

But the hope is vain and futile. To what purpose is it that the majority reverse 
as they did the strange decisions which they originally made in thecases of John 
McConaghy, Charles T. Pool, and Charles P. Marks, after they had discovered 
that the disposition of those cases was wholly immaterial. No; repentance 
and reformation came too late ; the spirit disclosed by thecases of McConaghy, 
Pool, and Marks had characterized the investigation from beginning to end. 
They had been permitted to stand as precedents, and to carry along wdth them 
a large train of cases of the same general character. They had operated with 
other causes to awaken in our minds sensations which it would be difficult to 
describe, and had induced three of us to abandon the committee room. 

If the majority suppose that they can thus escape the responsibility of having 
made those decisions, they will find themselves mistaken. 







( ) 

They did not carry the good work far enough ; they should have reversed the 
decisions in a large number of other cases not less flagrant, by which the result 
as to some of these parties at least would be entirely clianged. 

Besides, tlie House decided, during the present session, on the pilotage ques¬ 
tion from New York, that a committee has no right to reverse, reconsider, or 
annul a decision or resolution which they have once made or adopted ; and 
though the undersigned did not concur in tiiai view of congressional law> yet the 
vote of this House w’as at least binding on the majority of this committee; so 
that, on every ground, and particularly for all purposes of responsibility, vve re¬ 
gard the original decisions of the committee in the reversed cates as still sub¬ 
sisting and binding. Bitt.wbother they are so or not, we do not. deem important, 
as a host of other c uses remain, which imperiously demand revision by a tribunal 
of plenary powers—by the House itself. We have already stated that three of 
the undersigned were constrained to abandon the committee room; the other 
member of the minority remained steadily at his post, little more llian a specta¬ 
tor of the doings of the majority, with no power to do good or prevent evil, till he 
was brought to the hour of ten o’clock in the evening of the 1 lih instant, when, 
finding that the majority had resolved to have a midnight session, and that his 
physical capacities for endurance were completely exhausted, he, also, was 
obliged to leave the case to its fate. What took place after that, the undersigned 
do not know in such manner as to make it proper to state it; but we have only 
to suppose a case in which a standing committee of the pjouse continues its de¬ 
liberations in desecration of the sacred Sabbath, with a bare quorum present, 
not mentally but corporeally; maintaining their vigils with listless impatience, 
and thus forcing an oppressed and much injured party to abandon the vindication! 
of bis rights, and we shall probably form some conception of the manner in which 
grave and important questions can be .settled, that are in a high degree interesting 
to the people of an entire State. 

The undersigned would not do justice to a highly meriloiious public officer if 
they failed to notice the calumnious imputation attempted to be cast upon the 
character and conduct of the Executive of New Jersey, through the testimony of 
Daniel H. Ellis, which has been spread befoie the House and cnnntiy with a view 
to cieate the impression that he had prostituted his station and office to partisan 
purposes, and had pursued a very partial, unfair, and disengenuous course to 
tavoroneof the parties to thi.-! controversy. But the allegation of Ellis hasbeen 
shown, by the oaths of three credible witnesses, to be utterly false; and ElHs 
himsfelf, after dctoc'ion, has, by a volunteer affidavit, put in a plea in avoidance 
of his slandeis, on tfie ground of mistake. Wc have only to regret that, if those 
who have preferred so serious an accusation against Governor Pennington did 
not know it to be false, they did not. at least, take some pains to ascertain its 
truth befoie (hey ventured to make the charge, particularly as that gentleman 
seems to have acted, under Very trying circumstances,'with singular fidelity to the 
obligations impo.sed by the laws and institutions of his State. 

But we need not dwell on this subject, for what has a public man to fear, no 
mat'er how much ids conduct may be misrepresented or his motives tiaduced, 
when he is sustained by conscious rectitude, and renewed expressions of the 
confidence of a generous ami enlightened People? 

Much censure lias been cast upon the clerks of Cumberland and Middlesex 
because file returns of the votes from (he townships of Millville and South Am¬ 
boy were not included in their general lists forwarded to the Governor ; with how 
little justice, the followinir facts will show. The Millville return as made to 
the Clerk on the 13th of October, between the hours of “ten and eleven” in 
the afternoon ; and as the law of New Jersey is positive that liie return shall be 
made to the clerk “before five o’clock of that day,” and he is then at five o’clock 
to make his genera! list to he transmitted to the Governor, of course, he could 
include in that general list no returns, except such as were rcc< ived “bi fure five 
o’cl )ck.” Tiio clerk had no discretion. He proceeded according to law, and is 
in no way censurable. M'he blame, if any, belongs to the election officers. The 
return from South Amboy was made by a judge and inspector, and by Jas. M. 
Warne, representing himself as an inspector: his name, however, as such, does 
not appear in the list of town officers, nor was there any certificate or other evi¬ 
dence of his election as inspector filed with the clerk, as the law requires, if he 
had been duly elected to supply a vacancy, which we insist he was not. 

The law requires the certificate of such election to be filed wilb the clerk within 
three days. None such was ever filed. The certificate was presented to the 
clerk ten days after the election) and after the general list had been made out and 




( 23 ) 

sent to the Governor. Of course, as the return was not made accordincr to law* 
the clerk could nbt receive it, especially in a case like SoiUh Amboy, w'here the 
election of this very inspector was disputed as illegal and fraudulent, and wheic 
he and those who acted with him decided to receive alien votes, and actually did 
receive a number o( such. The evidence adduced to sustain the charge of fraud 
against the clerk of Middlesex very clearly disproves the whole charge, and his 
conduct, like (hat of the clerk ot Cumberland, was strictly in accordance with 
the law, and in no wise censurable, unless the refusal to violate the law in order 
to receive an illegal return, including a number of alien and illegal votes, be 
censurable. If we were disposed to indulge a censorious disposition, it would 
not be dilTicult for us, on the other band, to show from the evidence that tho 
conduct of the clerks of Somerset, Burlington, and Monmouth, all friendly to 
the Administration, was, at this very election, quite reprehensible; hut time will 
not permit. 

But the question as to the propriety of the conduct of the clerks of Middlese.t 
and Cumberland is wholly immaterial, as our object is, or sliould he, to ascertain 
which of the claimants received a plurality of the lawful votes of New-Jersev, 
The idea that these gentlemen are responsible for tlie disfranchisement of the 
stale, and for the exclusion of five-sixths of her delegation from the Hall during 
much of the session, by which the autlioiity of her laws has been spumed and 
her dignify trampltd in the dust, is too peurile to be vvorlhy of notice or comment. 

The undersigned will now proceed to state the result to which they have come 
on a careful examination of the case. If we were at liberty to take into conside¬ 
ration the whole proof submitted lo the committee, we should have little or no 
doubt hut that the entire Opposition ticket would be found to be duly elected ; 
hut excluding the mass of evidence which was rejected by the committee on 
grounds merely technical, wo areciearly of opinion that Messis. Charles C. Strat¬ 
ton, John P. B. Maxwell, and William Halsted, of the Opposition ticket, and 
Messrs. Peter D. Vroom and Wiiliam R. Cooper, of the Administration ticket, 
were duly elected members of the 2Gth Congress by a plurality of the lawful 
votes of the People of New-.Torsey. 

We find that from the polls ofMessis. A 3 'criggand his associates the follow¬ 
ing votes should be deducted, which we were of opinion were unlawful votes, viz. 

Jolin Udy, John Whitehead, Wm. C. Eyring, George Dilts, Thomas Simpson, J. W. Cortel- 
you, Henry T. Tanner, James Skinner, Chester Morey, Garret A. Cook, Rensselaer Dockerty, 
Peter Meleck, John T.Bray, John McMarriman, LorenzoD. Cummins, John Teats, Lewis Slump- 
fel, Frederick M. Querren, John Byeily, Gilbert Elliot, Jolin .S. Townsend, John W. Loder, 
John Colyer, John Siaughblower, James B. Bolton, Ebenezcr Perry, James Kiyle. Robert More, 
Samuel Knox, John Parr, Samuel Lewis, Thomas Gochir, Morgan W. Spade, Hezekiah Ewan, 
Joseph Merron, John Wriglit, Frazee GrilTen, Altraham J. Ricker, Jacol) Massaker, Wni. Massa- 
ker, Jolin Freeman, Isaac J. Jacobus, Henry 3Iyer,Charles A. Bedell, Richard Jones, Amos Price, 
Andrew Wade, Sandford Ilicks, Ezra Hill, Daniel Matthews, George Addams, William W. 
Black, Barney Gallagher, Isaac Burgey, Miles Jonson, Ariemas Anderson, David Doiand, Henry 
Thornton, John A. Cadmus, Adam Potter, Andrew Parsons, William Mitchell, Abraham Massa¬ 
ker, Nathaniel Crook, John M. Robinson, John Foy, Thomas Blydenburg, Wiiliam Brown, John 
G. Conover, Alexander Henderson, David Anderson, Felix Eyde, Wm. C. Parsons, Joseph E. 
Oliver, Andrew Cassedy, James Ilutron, Thornes Hutton, Richard Davis, Samuel Orr, David 
Wood, Daniel Bennet, and Benjamin Long—being in all 82 votes. 

To the votes of the claimants should be added the votes of Charles R. Swallow, Wm. Wel¬ 
ler, James G. Moore, Peter Swartz, James Teats. Aaron Vanderhoof, James Bl luvelt James Bell, 
John Carpenter, Thomas Brown, Daniel Swartz, Thomas Cadwallader, jr., Elijah Swartz, and 
Nelson Brown—being 14 in number, whose votes were illegally rejected at riie polls. Also, the 
seven votes not counted at the polls of Saddle River; and to Maxwell and Ilalsted the vote of 
Asher Atkinson. 

Wo find tliat from the poll of Mr. Vroom and his associates the following votes should be de¬ 
ducted, which we are of opinion are unlawful votes, viz. Benjamin Yougher, John McConaghy, 
Abraham Kloiz, George W. Morgan, Charles Parks, Moses Ammennan, Alexander Lucts, J. 
Beck, Nicholas Arrowsmith, Ahraman Bryan, Thomas A. Drake, John 1. Buck, Henry R. Doty, 
Ilei hert Smith, John Bodine, Thomas Warner, Matthew L. Rihble, Hugh W. Holloway, Nathan 
Bennett, Francis Anthony, William Gnlic, James Wamsiey, Wm. Scureman, E. Patterson, Rob¬ 
ert Martin, Hugh Cochran, Wm. Carney, Patrick O’Neil, John Galfany, Wm. McClintock, David 
Welsh, George Stephens, Dennis Cochran, Warren Wells, Andrew Kinsley, George Walker, 
Will. Gray, Patrick Ferral, Theophilus Phillips, Michael Green, Daniel Kellager, James Ennis, 
David Wilson, James Deasley, Isaiah Wallen, Abraham Predmore, Robert Bears, John Mnrry, 
J imcs Fraley, John P. Simmons, Atkinson Parks, William Muliere, Enos R. Booth, James Flate. 
Michael Lawler, Patrick Rider, Edward Blake, N. S. Nolan, Thomas Chamberlain, PeterLosow, 
Francis Losow, Justin McCoy, Eustace Brownliarot, Isaac Rake, Coiide Carr, Moses Robinson, 
I,ook Flood. John Malov, Charles Woods, James Whiteford, Neil Brown, Robert Christie, Rob¬ 
ert O’llarra, Albert Beeman, Samuel Cove, John McConachy, S. A. Price, Andrew P. Brink, 
Pliilip Sullivan, John Stanton, Garret Froeling, James Mitchell, Augustus IMathelen, Isaac Jobes, 
Abel Edwards, William Mc'^ee, John Darniedd, Luke Staiisbie, Joseph Barry, Edward Sey¬ 
mour, William Baker, Daniel Coliiian, Robt. Edwards, Clark lledJen, Ward C. Courier, Aurora 
McLoud, Cliristiaii Bonei Steplieu Coudict, Abijali O. Harrison, VV illiatn T. Hall, Authony L. 


Prnace, Isaac F. Martin, Stephen Cutter, jr» Hug^h Ward, Stephen H. Ilcddon, John Balter, Ro¬ 
bert Taylor, Mahlon Search, William Todd, John Dell, Rine Crim, Caleb Terry, Chnsf. Blazier, 
Obadiah Older, Samuel Dawson, Edward Dawson, John Vreeland, Henry Cunningham, Giles 
Courier, George A. Huyler, Wm. Wharton, Henry O’Neil, Thomas Entwistle, Dennis McLauch- 
lin, George’Norman, Tlios. I,ynet, Jos. Tliomson, David R. Schenck, Mich. McColiigan, Robert 
Greenleaf, Martin Harney, Barney Malone, James Conologue, Francis Dale, Coley McDonnongh, 
Hugh Conologue, Jas. Roake, IMalachi Good, Patrick Murphy, Jas. Cassedy, John McCioney, 
Solomon Hustion,‘James McCoombs, Peter Bulger, Robert Smith, John Catley, James Jviley, 
tJoha Ferguson, Hugh Campbell, Timothy Coleman, Samuel Lowrey, Wm. Mollincux, Edwin R. 
Owen, Henry Green, Isaac Hoff, Elias Green, Peter Barrant, John McCurdy, m. McCurdy, 
Hugh Richards, Wm. Bohrman, Nicholas Buckage, Michael Schaum, Lewis Schaum, Nicholas 
Hofl'man, Daniel Garritt, Herman Vogeding, Daniel McAnall, Constantine Voisard, Peter Sny¬ 
der, Frederick Wittee, Archibald McCambridge, Caspar Briel, Louis Reitz, Fred’k. Eberhardt, 
Aloys Abendschoen, Louis Becker, Wm. Kaltenback, sen., James Murdock, AV m. Kaltenl)ack,jr. 
John Donly, Wm. Williams, Christ. Johii Wildie, Andrew J. Bell, Charles C, Fithian, Walker 
Beesley, 'Thomas Sinnickson 2d, Errick H. Katts, John Starts. John Tash, being one bunded and 
ninety in number, with one vote given by John Slaughblower to Dickerson. There should also 
bo deducted nine votes from the polls a Saddle River, being so^many counted for them more 
than there were cast. There should, howfiver, be added to them the votes of William A. Har- 
ker, David B. Brown, Andrew R. Gray, Patrick Smith, Charles Dean, George Smith, Wm. Crum, 
Robert McMuller, James Langdon, and Joseph F. Newcomb, and two votes not counted at the 
polls of Paterson, and to Vroom the vote of Asher Atkinson, improperly rejected at the polls. 

The following table exhibits the returns, with the corrections made by us 


Deduct 

Dickerson. 

28,453 

200 

Vroom. 
28,492 

199 

Rvall. 

28,441 

199 

Cooper. 

28,455 

199 

Kille. 
28 426 
199 

Add 

28.253 

12 

28,293 

13 

28,242 

12 

28,256 • 

12 

28,227 

13 


28,265 

.28,306 

28,254 

28,268 

28,239 

Deduct 

Aycrieg. 
28,295 
. 82 

3Iaxwell. 

28,383 

81 

Halsted. 

28,337 

82 

Stratton. 

28,396 

82 

Yorke. 

28,’32l 

82 

Add 

28,213 

21 

28,302 

22 

28,255 

21 

28,314 

21 

28,239 

2i 


28,234 

28,324 

28,276 

28,335 

28,260 


The votes of John J. Alliger, Neleon Bedford, Herman C. Howard, John Smith, John O’Neil, 
and Wm. J. A}'res, were also illegal, but it did not appear for whom they voted. These votes do 
not affect the result. 

Wc have thus brought our labors to a close in the case of the contested election from the S»ale 
of New Jersey. They have been to us exceedingly annoying and irksome. They have banished 
us from the House, and excluded us/rom many of the duties imposed b^'our relation to our con¬ 
stituents. We have been deprived of the pleasure of serving those to whom we are under many 
obligations, and for whom we cherish the highest affection and rcjspect. Our names have been 
gazetted as absentees from the Hall, without the facts which would have explained an apparent 
dereliction of duty. Owing to the peculiar organization of the committee, its proceedings, in 
the despatch of business, have been timorous, hesitating,and embarrassed ; and, in cons(jquence, 
the investigation'has been unnecessarily protracted. 

The hope that our labors would terminate in any useful result has not cheered us on the way. 
It is our deliberate Judgment that the House is in little better condition to know tlie truth of the 
New Jersey case than it would have been if the Case had never been referred to the Committee 
of Elections. The perversions of law, and the misconstructions of fact, daily occurring, to 
which we have already adverted, nothing could have induced us to persevere, for so long a pe¬ 
riod, but our sense of obligation to the House and to the People of New Jersey. Now, we would 
ask, what is to he done 1 Only three or four days of the session remain, and it is not possible for 
the House short of some weeks, to arrive at even a tolerable understanding of the case. It can 
at once be referred to the People of New Jersey, iii accordance with the laudable suggestion 
made at an early thty by one of the parties—a suggestion which every one can now see should 
have been embraced, and thus this House w'ould have been saved infinite trouble, the public 
time would have been economized, and the country spared the evil resulting from the precedent 
establifched at the commencement of the session. Or will the House adopt the conclusions of the 
committee without e.xamination or scrutiny ? 

This IS inevitable if any action is taken on the subject at the present session. In such an event 
we shall witness a consummation of the indignities inflicted on the people of New Jersey, and* 
nothing will remain but to lake an .appeal to public sentiment, which is the supreme arbiter of 
“ men and measures” in a free country. 

The reliance of the undersigned on the efficacy of such an appeal they trust is not presumptuous, 
and it is ou this ground alone, after all that has transpired during the session in respeci to the* 
New Jersey question, that they repose any confiilence in the perpetuity of our free institutions 
or the preservation of the liberties of the American People. * 

House of Representatives, July 16, 1640. 

MILLARD FILT.MORE, 
TRUMAN SMITH, 

JOHN 31. BOTTS, 

_ BENJ. RANDALL. 

Printed hy H, H. HASSEY, Elizabeth-Town, N. J.—Price, Two Dallas 
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